Teisės principų samprata ir jos įtvirtinimas konstitucinėje jurisprudencijoje

The problem at issue and importance of the topic The subject at issue is specified in essence in the title of the thesis, it is the principles of law, their theoretical concept and consolidation of this concept in legal practice, i.e. constitutional jurisprudence. The elements of the concept of the principles of law are considered to be: a general theoretical definition of the principles, a linguistic notion of the principles of law, the basic features of their expression in a legal text, the role and meaning of the principles of law in the general system of standards of perfect behaviour, which are attributed to law, as well as functions of the principles of law in the legal process, and the features of and differences between interpretation of standards of direct and indirect regulatory effect on social relations and behaviour of abstract type, in comparison to ordinary norms of law. The realities of legal life, especially the activity of the constitutional and administrative control institutions, as well as powers of the courts of general jurisdiction to question the constitutionality of acts of positive law, determine the fact that entities of legal relations can direct and must direct their own behaviour and that of others not only by taking into consideration the standards of behaviour, which are traditionally entrenched in primary sources of law, the normative legal acts adopted by the law-maker and/or other authorised law-making entities, but taking into consideration the results of activity of other judicial institutions, first of all (but not only), the doctrines formed in the constitutional jurisprudence, when construing and re-interpreting norms and principles of law, too. Entities of social relations often must take account of imperative standards of behaviour, the content whereof is revealed not in the acts of ordinary jurisdiction, but the secondary acts on law interpretation. In this context the problem of the concept of principles of law becomes especially important. It is entrenched (among other provisions) in the Preamble to the Constitution of the Republic of Lithuania, that the Lithuanian Nation, striving for an open, just, and harmonious civil society and State under the rule of law, by the will of the citizens of the reborn State of Lithuania, adopts and proclaims this Constitution. The imperatives of justice, of an open and civil society, and a state under the rule of law are usually referred to in scientific discourse and legal practice as the fundamental principles of law. On the other hand, in the theoretical legal literature it is the legal ideas which do not have formal expression in texts of normative legal acts that are often referred to as the principles. In the text of the act of supreme legal power, the Constitution, which consolidates the bases of the social order, the organisation and activity of state power, as well as the innate human rights, and relations between a human being and the state, as well as other fundamental values, the principles of law are expressis verbis mentioned only in Article 135, which reads that in implementing its foreign policy, the Republic of Lithuania shall follow the universally recognised principles and norms of international law. Alongside, one is to mention the Constitutional Law “On the Lithuanian State” of 11 February 1991 and its Article 1 which provides that “The provision ‘The State of Lithuania is an independent democratic Republic’ shall be a constitutional norm of the Republic of Lithuania and a fundamental principle of the State”, is also to be mentioned. Other important issues are linked with the concept of principles of law as well. Which elements of the text of the Constitution and other legal acts are the norms of law, and which elements are the principles of law, or maybe both the norms and fundamental principles of law? Which elements may be reasonably assigned to the system of law at all, are they only the norms of law, or principles of law as well? Are the principles of law as elements of legal text a special type of norms of law? Or could it be that the principles of law are independent elements of the system of law, the features of which are more or less identical to the formal features of the norms of law, while these elements have different functions in the legal process? The aforementioned issues are not subject to a dispute only between the experts of theory of law and constitutional law. The problem of the concept of principles of law is linked with a variety of problems in everyday legal practice. For example, what is the difference between the consolidation of the norms of law and principles of law in the texts of legal documents? Can we state that the principles of law, which are literally not formulated in law-making acts, exist and determine our behaviour? Has the court, when applying law, the powers to interpret a legal norm and/or legal principle in a broadened sense, and if so, where should the limits of such interpretation be set? Could the result of such interpretation—the imperative standard of behaviour, developed and formulated in a legal act not by the Nation, nor the institution of its authorised representatives, but by the court—be legal? Is it a new standard of behaviour which may not be retrospective or a rule of behaviour, which existed for a long time, but was officially concretised only recently? This is not a detailed list of problematic issues. The majority of the said problems could be solved with the help of clearer formulation of the concept of the principles of law, which, in its turn, would answer the following questions: what is the role of principles of law in the system of law, what are the features of the formal definition of these standards of abstract behaviour, how do the principles of law influence the social reality? If the principles of law, as it is often stated, are not only the declarative provisions of legal texts, with what interrelations do the principles of law enrich the system of norms of law and/or principles of law? The purpose and tasks of the investigation The purpose of the investigation is to find out, what concept of the principles of law is established in the constitutional jurisprudence of Lithuania, and, on the grounds of a systematic theoretic analysis of concepts of various principles of law and examples of the constitutional jurisprudence, to verify the hypothesis: in judicial practice the principles of law which are treated as guiding derivation, and the fundamental standards of behaviour, which are of broad content and regulatory effect, are not considered identical to the norms of law—these legal phenomena (principles and norms) co-exist side by side, but differ in their functions in the legal process, as well as in the particularities of their formulation in the texts of legal acts and interpretation thereof. When seeking to attain the objective of the investigation, the following tasks are raised: to review and critically evaluate the basic conceptions interpreting the concept of the principles of law, as well as to justify, pursuant to the examples of the constitutional jurisprudence, the role and importance of the principles of law as legal provisions of an especially abstract type in the system of law, to reveal the major features of the concept of the principles of law, which is entrenched in the constitutional jurisprudence, to find particularities of consolidation of the principles of law in the texts of legal acts and interpretation thereof, to describe the functions of principles in the legal process, to reflect the links between the concept of principles of law and important problems of the legal practice, and to formulate conclusions and proposals for solution of these problems.